The Supreme Court on September 6 gave a ray of hope to the LGBTQ community by decriminalising homosexuality. A ray of hope because it’s still a long road ahead for the community to realise its full rights as citizens of the country. The judges, while giving the verdict, talked about the irrationality of Section 377, personal liberty, and dignity of an individual. Justice D Y Chandrachud also commented on the neutral stand that the central government took in the case. This neutrality of the government reflects on the fact that politics always succumb to the popular prejudices of the society.
Democratic politics in real terms is a contest among different interest groups. Political parties while gathering support try to strike a balance between these different political interests. In this exercise, the majority often finds political support, but the ones whose interests are unacceptable throughout the social spectrum are left out. In a country which does not understand the concept of individual liberty, the rights for homosexuals are least likely to find support. This creates a situation where a section of the society is forced to build a movement from scratch.
The LGBT community started their movement for equal rights by coming out and accepting their identities in front of the society. But apart from the mindset of people they had to fight a legal battle as well, as the colonial-era Section 377 made the community criminals in the eyes of the law. Hence, the LGBT community took their cause to the courts, and in 2009 the Delhi High Court decriminalised homosexuality. However, Delhi HC’s order was reversed by the Supreme Court in 2013 as it found the order legally unsustainable. The legal battle was lost for the moment, and the political class too remained indifferent to their demands this whole time. But in the meantime, India had started accepting the concept of individual liberty and the LGBTQ community found support pouring in from various sections of the society. The significance of about individual liberty is important because the realisation of legal rights for LGBT is linked to another cause for individual freedom- the right to privacy. The Supreme Court on August 24, 2017, declared the right to privacy as a fundamental right. This judgment became the ground for the legality of homosexuality, and the court decided to revisit its previous 2013 judgement on the issue.
During the latest hearings, the government’s neutral stand shows a peculiar aspect in the relationship between the government and the judiciary – government at times need the judiciary to save itself from the anger of its voters. Government’s decision of leaving the matter to the ‘wisdom of the court’ is an escape from legislating on the issue, a move which might not have gone well with their voter base. Over the years, the fight for gay rights did gather support from different sections but the supporters are still a minority and that too geographically dispersed. It is not enough for the government to go against the popular prejudices of its voters. But the government might have also sensed the futility of supporting those prejudices in the court and hence decided to exercise its last option of letting the court decide.
The supporters of the LGBT community did enough to bring the government from apathy to a neutral stand. Hence, even though there is still a long road ahead, given the social situation even this neutrality of the government is a victory for the movement on the political front. Similarly, the support which some of the current opposition parties after the verdict highlights that they have waited for the appropriate time. But despite this support, the fight for further rights of the community will be fought at the level of judiciary only, because the political class is unlikely to support their cause any further without any outside pressures as the prejudiced mindset remains a challenge.